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~ V
STATF
C~Ec~lOi~e
IN THE SUPREME COURT OF THE STATE OF OREGONSEp 0~
22
? 0 1 4
~ Cp~~T
viE' (;C
uHT
~ CEP CF~P
~ EVERICE MORO; TERRI DOMENIGONI; CHARLES CUSTER; JO~
~ HAWKINS; MICHAEL ARKEN; EUGENE DITTER; JOHN O'KIEF;
~ MICHAEL SMITH; LANE JOHNSON; GREG CLOUSER;
~ BRANDON SILENCE; ALISON VICKERY; and JIN VOEK,
Petitioners,
V .
w
STATE OF OREGON; STATE OF OREGON, by and through the
~ Department of Corrections; LINN COUNTY; CITY OF PORTLAND;
~ CITY OF SALEM; TUALATIN VALLEY FIRE & RESCUE; ESTACADA
` SCHOOL DISTRICT; OREGON CITY SCHOOL DISTRICT; ONTARIO
SCHOOL DISTRICT; BEAVERTON SCHOOL DISTRICT; WEST LINN
~ SCHOOL DISTRICT; BEND SCHOOL DISTRICT; and PUBLIC
r
EMPLOYEES RETIREMENT BOARD,
~
Resporidents,
~
and
LEAGUE OF OREGON CITIES, OREGON SCHOOL BOARDS
ASSOCIATION; and ASSOCIATION OF OREGON COUNTIES,
Intervenors,
a n d
CENTRAL OREGON IRRIGATION DISTRICT
Intervenor below
S061452 (Control)
WAYNE STANLEY JONES,
Petitioner,
V .
PUBLIC EMPLOYEES RETIREMENT BOARD, ELLEN ROSENBLUM,
Attorney General, and JOHN A. KITZHABER, Governor,
Respondents.
S061431
WAYNE STANLEY JONES' EXTENDED REPLY BRIEF SEPTEMBER 2014
, - MICHAEL D:. REYNOLDS,
Petitioner,
V .
PUBLIC EMPLOYEES RETIREMENT BOARD, ~State of Oregon; and
JOHN A. .KITZHABER, Governor, State of Oregon,
: Respondents.
S061454
. . .GEORGE A. RIEMER,
. . ; ..
Petitioner,
.
. ;
V .
STATE OF OREGON; OREGON GOVERNOR JOHN A. KITZHABER;
OREGON ATTOR. NEY GENERAI< ELLEN ROSENBLUM; OREGON
PUBLIC EMPLOYEES RETIREMENT BOARD; and OREGON PUBLIC
EMPLOYEES RETIREMENT SYSTEM,
Respondents.
S061475
GEORGE A. RIEMER,
Petitioner,
V .
STATE OF OREGON; OREGON GOVERNOR JOHN A. KITZHABER;
OREGON ATTORNEY GENERAL ELLEN ROSENBLUM; PUBLIC
EMPLOYEES RETIREMENT BOARD; and PUBLIC EMPLOYEES
RETIREMENT SYSTEM,
Respondents.
S061860
PETITIONER WAYNE STANLEY JONES' EXTENDED REPLY
BRIEF
for Direct Judicial Review based on Senate Bill 822,
77th Oregon Legislative Assembly, 2013 Regular Session, and
Senate Bill 861, 77th Oregon Legislative Assembly, 2013 Special Session
WAYNE STANLEY JONES' EXTENDED~REPLY BRIEF SEPTEMBER 2014
AG Ellen Rosenblum #753239
SG Anna M. Joyce #013112
AAG Keith L. Kutler #852626
AAG Matthew J. Merritt # 122206
AAG Michael A. Casper #062000
Oregon Department of Justice
1162 Court Street.NE.
Salem, OR 97301-4096
Telephone: 503-37-8-4402
Facsimile: 503-378-6306
anna.ioyce@doj. state. or.us
keith. kutler@doj . state. or. us
matthew. merritt(~ a,doi . state. or.us
michael.casper@doj.-state.or.us
Attorneys for State. Respondents
Harry Auerbach #821830
Kenneth A. McGair #990148
Office of the City Attorney
1221 SW 4`'' Avenue, Ste 430
Portland, OR 97204
Telephone: 503-823-4047
Facsimile: 503-823-3089
harry. auerbachgportlandoregon. gov
ken.McGair(~ a,portlaindoregon. gov
Attorney for Respondent City of
Portland
Eugene J. Karandy II #972987 .
Ofrice of County Attorney
Linn County Courthouse
104 SW Fourth Avenue, Room 123
Albany, OR 97321
Telephone : 541-967-3 840
F acsimile : 541-928-5424
gkarandyA co. linn. or. us
Attorney for Respondent Linn County
William F. Gary #770325,
william.f.g_ ary@harran . g com
Sharon A. Rudnick#830835
sharon.rudnick@haffang.com
Harrang Long'Gary Rudnick PC
360 E. 10`'' Ave., suite 300
Eugene, OR .97401
Telephone: -503-242-00.00:
Facsimile: 541-686=6564
Attorneys for Respondents Linn
County, Estacada, Oregon City,
Ontario, West Linn School Districts
and Beaverton School Districts; and
Intervenors Oregon School Boards
Association and Association of
Oregon Counties
DanieJ B. Atchison #040424
Kenneth Scott Montoya #064467
Office of City Attorney
555 Liberry Street SE Rm 205
Salem, OR 97301
Telephone: 503-588-6003
Facsimile: 503-361-2202
datchison(~ a,cityofsalem.net
kmontoya@cityofsalem.net
Attorney for Respondent City of
Salem
Edward F. Trompke #843653
Jordan Ramis PC
Two Centerpointe Drive, 6`h Floor
Lake Oswego, OR 97035
Telephone: 503-598-5532
Facsimile: 503-598-7373
ed. trompke(a~ ~j ordanramis. com
Attorney for Respondent Tualatin
Valley Fire and Rescue
WAYNE STANLEY JONES''EXTENDED REPLY BRIEF SEPTEMBER 2014
Lisa M. Frieley #912763
Oregon School Boards Association
PO Box 1068
Salem, OR 97308
Telephone: 503-588-2800
Facsimile: 503-588-2813
lfreiley@osba.org
Attorney for Respondents Estacada,
Oregon City, Ontario, and West Linn
School Districts and Intervenor
Oregon School Boards Association
Rob Bovett #910267
Association of Oregon Counties
1201 Court St. NE Ste 300
Salem, OR 97301
Telephone: 971-218-0945
rbovett e aocweb.org
Attorney for Linn County
1Vlichael D. Reynolds (Petitioner Pro
Se)
8012 Sunnyside Avenue N.
Seattle, WA 98103
Telephone: 206-910-6568
mreynoldsl4@comcast.net
Petitioner pro se
Sara K. Drescher #042762
Tedesco Law Group
3021 NE Broadway
Portland, OR 97232
Telephone: 866-697-6015
sara@miketlaw.com
Attorney for Amicus Curiae IAFF
W. Michael Gillette #660458
Leora Coleman-Fire #113581
Sara Kobak#023495
William B. Crow #610180
Schwabe Williamson & Wyatt PC
1211 SW 5`h Ave Suite 1900
Portland, OR 97204
Telephone: 503 -222-9981
Facsimile: 503-796-2900
wm il g lette@schwabe.com
Attorneys for Intervenor League of
Oregon Cities
George A. Riemer (Petitioner Pro
Se)
23206 N. Pedregosa Drive
Sun City West, AZ 85375
Telephone: 623-238-5039
cortebella@gmail.com
Petitioner pro se
Gregory A. Hartman #741.283
HartmanGgbennettthartman. com
Aruna A. Masih #973241
MasihA@bennetthartinan.com
Bennett Hartman Morris
210 SW Morrison Street, Suite 500
Portland, OR 97204
Telephone: 5 03 -546-9601
Attorneys for Petitioners Moro,
Domenigoni, Custer, Hawkins,
Arken, Ditter, O'Kief, Smith,
Johnson, Clouseer, Silence,
Veckery, and Voek
Craig A. Crispin #82485
Crispin Employment Lawyers
1834 SW 58th Avenue, Suite 200
Portland, OR 97221
Telephone: 503-293-5759
crispin@employmentlaw-nw.com
Attorney for Amicus Curiae AARP
WAYNE STANLEY JONES' EXTENDED REPLY BRIEF SEPTEMBER 2014
Thomas A. Woodley
taw@wmlaborlaw.com
Douglas L. Steele
dls@wmlaborlaw.com
Woodley & McGillivary
1101 Vermont Ave., NW, Suite 1000
Washington, DC 20005
Telephone: 202-697-6015
Attorneys for Amicus Curiae IAFF
The Honorable Stephen K. Bushong
Multnomah County Circuit Court
1021 S.W. 4t ' Avenue
Portland, OR 97204
Telephone: 503-988-3546
stephen.k.bushong~a~,ojd. state.or.us
WAYNE STANLEY JONES' EXTENDED REPLY BRIEF SEPTEMBER 2014
TABLE OF CONTENTS
Page(s)
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Introduction .................................................... 1
ASSIGNMENT OF ERROR NO. 1 In an effort to undermine clear case
precedent which favors Petitioners' position, Respondents and Intervenors urge
this Court to "disavow" or "reject" all or part of its prior decisions which hold
PERS members have a contractual right to their PERS benefits, including the
COLA.........................................................l
A. Respondents' and Intervenors' request to overturn prior settled Oregon
case law, runs roughshod over the principle of stare decisis .......... 1
B. Respondents and Intervenors have failed to prove error in prior Oregon
Supreme Court holdings; and their assertion attempts to undermine the
Court's careful review in these prior cases . . . . . . . . . . . . . . . . . . . . . . . 3
C. The Respondents' and Intervenors' allegations that this Court provided
only a"superficial" analysis in prior decisions is inaccurate and demeans
the careful analysis provided by prior Courts . . . . . . . . . . . . . . . . . . . . . . 6
Assignment of Error No. 2 The 2013 COLA changes to Petitioner Jones'
contractual retirement benefit are not a`betterment' as claimed by Respondents
and Intervenors, but instead constitute a substantial impairment to his contract
withPERS ......................................................7
Assignment of Error No. 3 State Respondents' allegations that any
impairment to Petitioner Jones from SB 822 and SB 861 is "insubstantial" is
factually wrong; Petitioner Jones' will suffer a substantial impairment if SB 822
and SB 861 are upheld . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Assignment of Error No. 4 Respondents and Intervenors are in error in
asserting that the Oregon Legislature may remove that part of Petitioner Jones'
PERS contractual retirement benefits provided in SB 656 and HB 3349, solely
because he lives out of state, as that action would violate Ragsdale, the
principles of intergovernmental tax immunity, and the legislative intent in
enacting these two bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
PETITIONER WAYNE STANLEY JONES' EXTENDED REPLY BRIEF
11
Assignment of Error No. 5 Petitioner Jones' contractual right to his full PERS
retirement benefit, including the pre-2013 COLA, was fulfilled when he retired;
they are not a"windfall," a"gratuity", or an"ad hoc COLA" as erroneously
alleged by Respondents and Intervenors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A. Oregon case law affirms that Petitioner Jones' gave consideration for his
pre-20131egislation retirement benefits . . . . . . : . . . . . . . . . : . . . . . . . . 20
B. Intervenor League mischaraeterizes the COLA which predates the 2013
legislation as `adhoc ...................................... . . . . . 22
C. Respondents and Intervenors erroneous characterization of Petitioner
Jones' pre-2013 contractual retirement benefits as a`windfall' or a
`gratuity' fails to recognize that upon his retirement, Petitioner Jones'
right to his PERS contractual retirement benef ts were fully vested, and
the 2013 legislation resulted in a substantial iinpairment of those
rights................................ ....................... 23
Assignment of Error No. 6 State Respondent misstates the facts in minimizing
the substantial impact of the removal of SB 656 and HB- 3349 from Petitioner
Jones......................................................... 24
Assignment of Error No. 7 Respondents and Intervenors are in error in
alleging Petitioner Jones must satisfy the criteria for a facial challenge ...... 26
Conclusion..................................................... 26
Certificate of Compliance with Brief Length and Type Size
Requirements
Certificate of Service and Certificate of Filing
PETITIONER WAYNE STANLEY IONES' EXTENDED REPLY BRIEF
iii
TABLE OF AUTHORITIES
Page(s)
CASES
Adams v. Schrunk, 6 Or.App. 580,
488 P.2d831, rev. denied(Novernber16, 1971) . . . . . . . . . . . . . . . . . . . . 5
Booth v. Sims, 193 W. Va. 323 456 S.E. 2d 167 (W. Va. 1995) ............14
Crawfordv. Teachers' Ret. FundAss'n.
164 Or. 77, 99 P.2d729 (1940) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 14-15
Davis v. Michigan, 49 U.S. 803 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17,25
Ellis v. Utah State Retirement Board, 752 P.2d 882 (Utah App. 1988) ....... 9
Hart v. Washington Co. Rural Fire Protection Dist.,
52 Or. App. 1005, 630 P.2d390 (Or.App. 198 1) . . . . . . . . . . . . . . . . . . 24
Hughes v. State of Oregon, 314, Or.l, 838 P.2d 1018 (1992) ....:. 3-4, 6-7, 23
Marbury v. Madison, 5 U.S. 137 (1803) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Nicholas v. Nevada, 116 Nev. 40, 992 P.2d262 (Nev. 2000) . . . . . . . . . . . . . 15
Oregon State Police Officers Association v. State of Oregon,
323 Or.356(1996) ..........................................4
Ragsdale v. Department of Revenue, 321Or. 216,
895 P.2d1348 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-20
Rose City Transit v. City of Portland, 271 Or. 588 (Or. 1975) ........ 8, 20-21
Sheehy v. Public Employees Retirement Division, 262 Mont. 129,
864 P.2d762 reh. den. (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-18
Strunk v. Public Employees Retirement Board,
338, OR 145 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6-7, 11-13, 15
PETITIONER WAYNE STANLEY JONES' EXTENDED REPLY BRIEF
iv
Taylor v. Multnomah County Deputy Sheriff's Retirement Board,
265 Or. 445 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 20-21
UnitedFirefighters of Los Angeles City v. City of Los Angeles,
210 Cal. App. 3 d 1095 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
UnitedStates v. Washington, .872 F.2d 874 (9th Cir. 1989) . . . . . . . . . . . . . . . 2
Vogl v. Department of Revenue, 327 Or: 193 (1998) . . . . . . . . . . . . . . . . . 19-20
CONSTITUTIONS, STATUTES, AND RULES
ORS 238.360(1) (2001) . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . 3, 7, 13
Or. Laws 1971, ch. 738 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10, 20, 22
Or. Laws 1973, ch. 695 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 8, 14, 20-22, 24
Or. Laws 1995, ch. 569 (HB 3349) . . . . . . . . . . . . . . . . . . . . . . 16, 19-21, 24-25
Or. Laws 1991, ch. 796, (SB 656) . . . . . . . . . . . . . .. . . . . . . . . . . 5, 16-21, 24-25
Or. Laws 2013, ch. 53 (SB 822) . . . . . . . . . . .' . . . . . ". . . . . . 7-13, 15, 22-23, 26
Or. Laws 2013, ch 2(Special Session) (SB 861). ......... 7-13, 15, 22-23, 26
4 U.S.C. section 111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
TREATISES AND OTHER AUTHORITIES
Black's Law Dictionary, 6`h Edition, www.foavc.org . . . . . . . . . . . . . . . . . . . . . 2
Consumer Price Index, 1913--,The Federal Reserve Bank
of Minneapolis; minneapolisfed.org . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Glossary in the Guide to Implementation of GAS'B Statement 67
on Financial Reporting for Pension Plans, by the
Governmental Accounting Standards Board (June 2013) . . . . . . . . . . . 22
SPECIAL MASTER'S FINAL REPORT AND RECONIlVIENDED
FINDINGS OF FACT, April 30, 2014 (SMR) . . . . . . . . . . . . . 12-14
PETITIONER WAYNE STANLEY JONES' EXTENDED REPLY BRIEF
EXTENDED REPLY BRIEF
Introduction
Petitioner Jones, in this consolidated reply brief, will correct a number
of errors of fact and/or errors of law contained in the Answering Briefs filed
by State Respondents, County/School District Respondents, and Intervenor
League [collectively hereinafter referred to as `Respondents and
Intervenors'].
ASSIGNMENT OF ERROR NO. 1 In an effort to undermine clear
precedent which favors Petitioner Jones' position, Respondents and
Intervenors urge this Court to "disavow" or "reject" all or part of its
prior decisions which hold PERS members have a contractual right to
their PERS benefits, including the COLA.
Respondents and Intervenors insist this Court should "disavow" or
"reject" a whole line of Oregon Supreme Court cases which establish that
PERS members have a contractual right to their PERS benefits, alleging
these decisions are "superficial," are full of "errors," and did not contain
"strict and methodical inquiry."
A. Respondents' and Intervenors' request to overturn prior settled
Oregon case law, runs roughshod over the principle of stare
decisis.
1
PETITIONER WAYNE STANLEY JONES' EXTENDED REPLY BRIEF
2
Among America's three branches of government, "It 'is emphatically the -
province and duty of.the judicial department to say what the law.is."
Marbury v. Madison,.5 U.S. 137,177 (1803). Once the Court has
determined what the law is, the principle of stare decisis provides that courts
are obliged to abide by their precedents and not disturb settled matters.
Stare decisis means:
"Doctrine that; when court has once laid down a principle of
law as applicable to a certain state of facts, it will adhere to that
principle; and- apply it to all future case, where facts are
substantially the same. ... The doctrine is not ordinarily
departedfrom where decision is of long-standing andrights
have been acquiredunder it, unless considerations of public
policy demand it."
Black's Law Dictionary, 6h Edition, www.foavc.org. (emphasis in original).
Clearly, Petitioner Jones, in retiring in 1998, relied on the contractual riature
of his full PERS retirement benefit, including his 2% COLA. Since the -
1940s, this right has been repeatedly upheld in Oregon case law, and is
entitled to p'rotection.under the principle of stare decisis.
The Ninth Circuit Court affirmed the principle of stare decisis in United
States v. Washington. The Ninth Circuit refused defendant's request that it
overrule its prior decision, saying: "We are bound by decisions of prior
panels unless an en banc decision, Supreme Court decision, or subsequent
legislation undermines those decisions." UnitedStates v. Washington, 872
F.2d 874, 880 (9th Cir. 1989). The Ninth Circuit reviewed the statutory
PETITIONER WAYNE STANLEY IONES' EXTENDED REPLYBRIEF
3
language and legislative history of the challenged case and rejected the
suggested need for further clarification. This is exactly the situation here.
B. Respondents and Intervenors have failed to prove error in prior
Oregon Supreme Court holdings; and their assertion attempts to
undermine the Court's careful review in these prior cases.
Respondents and Intervenors have alleged, but failed to give any
substantive evidence that proves any errors in this Court's prior judgments.
The Oregon Supreme Court has repeatedly reviewed and consistently
afftrmed the contractual nature of PERS retirement benefits and of PERS
members' right to these benefits, including the 1973 COLA. The case
history on this point is clear.
Strunk v. Public Employees Retirement Board, 338 Or. 145, 108 P.3d
1058 (Or. 2005) is determinative on this issue. The Court held that the ORS
238.360(1)(2001) COLA was part of the contractual PERS retirement
benefit.
"Like the tax provision analyzed in Hughes, the text of ORS
238.360(1)(2001) evinces a clear legislative intent to provide
retired members with annual COLAs on their service retirement
allowances, whenever the CPI warrants such COLAs. We
therefore conclude that the general promise embodied in ORS
238.360(1)(2001) was part ofthe statutory PERS contract
applicable to the group of retired members affected by the 2003
provisions at issue here."
Id. at 221.
PETITIONER WAYNE STANLEY JONES' EXTENDED REPLY BRIEF
4
The Court determined that the promise of annual COLAs did not extend to
erroneous overpayments. "However, the promise does extend to properly
calculated service retirement allowances." Id. at 222.
The Court affirmed the principle of the contractual nature of PERS
retirement benefits in Oregon State Police Officers Association v. State of
Oregon, 323 Or. 356 (1996), stating:
"the state may undertake binding contractual obligations with ,
its employees, including benefits that may accrue in the future
for work not yet performed. Mor.eover, the cases recognize that
the PERS pension plan is an offer for a unilateral contract
which can be accepted 'by the , tende"r of part performance by the
employee. The Oregon line of cases is consistent with the
majority of jurisdictions that have considered the issue and also
is consistent with the modern view of the nature of pensions."
OSPOA at 371 (emphasis added).
Likewise, the Court in Hughes v. State of Oregon, 314 Or. 1(1992),
held that PERS statutes were part of a unilateral contract extended by the
state to its employees; and the 1991 law subjecting PERS benefits to Oregon
state income taxation breached that contract. The Hughes court, citing to
frve previous Oregon cases, held that upon employment:
"Oregon is in line with the theory of pensions which holds that
pensions are a form of compensation and that employees '
acquire vested contractual rights in pension benefits. ... An
employee's contract right to pension benefits become vested at
the time of his or her acceptance of employment. ... On vesting,
an employee's contractual interest in a pension plan may not be
substantially impaired by subsequent legislation.
PETITIONER WAYNE STANLEY JONES' EXTENDED REPLY BRIEF
5
Id. at 20.
The Court spent several pages detailing the legislative history which
justified its decision. The Court then stated: "Thus, by virtue of the terms of
the statutes, the legislative history, andour holdings that PERS is acontract,
the contrdctual intent of the legislature in this case has been decided." Id. at
21 (emphasis added).
Reaching back further into Oregon's case law history, the Oregon
Supreme Court in Taylor v. Multnomah County Deputy Sherifs Retirement
Board, 265 Or. 445 (1973), found "that plaintiff established a contractual
right to participate in the pension plan. The adoption of the pension plan
was an offer for a unilateral contract. Such an offer can be accepted by the
tender of part performance." Id. at 455. In reaching its conclusion, the Court
stated: "Oregon has joined the ranks of those rejecting the gratuity theory of
pensions and has held that contractual rights to a pension can be created
between the employee and employer." Id. at 450. Taylor recited Oregon's
prior adherence to this principle in two earlier Oregon cases of Crawfordv.
Teachers' Ret. FundAss'n. 164 Or. 77, 99 P.2d 729 (1940), and also in
Adams v. Schrunk, 6 Or.App. 580, 488 P.2d 831, rev. denied(November 16,
1971). The Taylor court said: "We conclude from the above authorities that
Oregon has adopted not only the contractual concept of pensions; but, also,
PETITIONER WAYNE STANLEY IONES' EXTENDED REPLY BRIEF
6
the concept that contractual rights can arise prior to the completion of the,
service necessary to a pension."- Id.
`This overview of Oregon Supreme Court cases evidences this Court or
the Oregon Court of Appeals has reviewed the issue of the contractual
retirement rights of PERS mcmbers at least six times,-that its review of the
legislative history and statutory context has been thorough;.and that the
Court has consistently held that contract rights in PERS benefits exist
between the state and PERS members.
Respondents and Intervenors have failed to provide any evidence
showing these six Oregon. opinions (Intervenor League cites to 8 Oregon
decisions) were'all made in error. Their request to "reject" -or "disavow" the
Hughes and Strunk decisions necessarily undermines all the case law
underlying those decisions, and is unsupported by fact or law.
C. The Respondents' and Intervenors' allegations that this Court
provided only a"superficial" analysis in prior decisions is
inaccurate and demeans the careful analysis provided by prior
Courts.
Respondents and Intervenors challenges to both the 121-page Strunk
opinion and the 72-page Hughes. opinion as "superficial" defies logic. A
court's written opinion often reveals only the tip of the iceberg as to how the
court came to its holding. But the Strunk and Hughes decisions are not
cryptic opinions. They are full-bodied, well reasoned decisions.
PETITIONER WAYNE STANLEY JONES'EXTENDED REPLY BRIEF
7
The Strunk Court examined three amendments to members' PERS
benefits using the test of `whether the text of legislation and its statutory
context clearly and unambiguously promised PERS members a benefit that
would continue. in the future.' As to the COLA, the Strunk Court held: "[I]t
is indisputable that the promise set out in ORS 238.360(1)(2001) respecting
annual COLAs remains part of the PERS statutory scheme applicable to the
affected group of retirement members." Strunk at 224.
Although Respondents and Intervenors cite with approval the test used in
Strunk, since they did not like the conclusions reached by the Court on the
COLA, they criticize the opinion as `superficial' and assert the Court did not
actually use the test they set out. These criticisms of the Court are illogical
and demean the lengthy analysis of the Strunk and Hughes opinions and the
consistency of the prior Oregon cases that affirm the contractual nature of
PERS retirement benefits.
Assignment of Error No. 2 The 2013 COLA changes to Petitioner
Jones' contractual retirement benefit are not a`betterment' as claimed
by Respondents and Intervenors, but instead constitute a substantial
impairment to his contract with PERS.
Taken together, Oregon Laws 2013, chapter 53 ("SB 822') as
amended by Oregon Laws 2013, chapter 2(Special Session)("SB 861")
PETITIONER WAYNE STANLEY IONES' EXTENDED REPLY BRIEF
~ 8
~ (hereafter sometimes referred to as "the.2013 legislation"), provide a
~ that is actually no longer based on the Consumer Price Index (CPI). The
~ original 1971 COLA required an annual adjustment, based on the CPI for
~
~ from 1.5 to 2.0 percent in 1973. Oregon Laws 1973, chapter 695. This 1973
~ change was an enhancement from the 1971 COLA. This change was
was accepted by new hires when they joined the work force. In Rose City
~ Transit v. City of Portland, 271Or. 588 (Or. 1975), the Oregon Supreme
Court held that "This court has held that the adoption of a pension plan is an
~ offer for a unilateral contract." Id. at 592. And it noted that "an employee
~